Sometimes I am amazed by the innovation in the online world. Today's amazement is that I was contacted via Twitter by whohub.com and conducted an online interview. All the questions were preset, but all intelligent questions to ask. Check it out: http://www.whohub.com/stephenpage#

Saturday, 11 September 2010

A Federal Magistrates Court decision requiring a barrister to pay over $5000 costs to the other party, and reporting the barrister to his disciplinary body has been overturned, pending a further trial before a different Federal Magistrate.

On that day, the date of the original trial, one of the issues in the original case was whether or not the husband was the father of the child. It seems as though the wife was asserting that she was not sure. In any case she gave evidence that on that day she told her barrister that she was certain that the husband was the father of the child, and that therefore paternity testing was not required.

The Federal Magistrate on that day was handed a draft order proposing a paternity test. The Federal Magistrate said that the issue of paternity was a significant issue and if in doubt he would be reluctant to increase the husband's time with the child until that had been determined.

The wife's counsel told the court that had instructions from his client to oppose any orders for overnight time and that he otherwise had no instructions in relation to the issue of paternity.

After 16 December, 2008

Once it became apparent what the wife was saying about her barrister, his professional indemnity insurer was allowed to be come a party to the case.

Despite notice by the court that there would be a hearing on the point, the Federal Magistrate instead of holding a hearing, pronounced the orders. The barrister sought a retrial because of the basic right to be able to be heard.

What the Full Court said

There was no question that a lawyer could be ordered to pay costs. The court reaffirmed the principles of when a lawyer might be required to pay costs:

In Cassidy v Murray the Full Court also set out the principles relevant to the exercise of the jurisdiction to award costs against a lawyer under the Act. The Full Court referred with approval to the decision of the Master of the Rolls, Sir Thomas Bingham, in Ridehalgh v Horsefield(1994) 3 All ER 848 at 855 and said at p 82,365:

Pursuant to s 117(2)Family Law Act, the court has jurisdiction to make an order for costs against a solicitor or a non-party.

The court should not make such an order without giving the person to be affected by the order an opportunity to be heard.

The court may make an order for costs against a solicitor without the necessity to establish that the solicitor has been guilty of serious professional misconduct.

The solicitor has a duty to the court to promote the interests of justice whilst at the same time attending to the needs of the solicitors clients.

A mistake or error of judgment would not justify an order for costs against a solicitor. However, misconduct, default of negligence, any of which are found by a court to be or a serious nature, maybe sufficient to justify an order.

The jurisdiction is compensatory.

The court found that the barrister should have the right to be heard and sent the matter back for rehearing before another Federal Magistrate to allow that to happen.

Friday, 10 September 2010

In the recent Family Court case of Van den Linden and Kordell, the wife died in the midst of property settlement proceedings. The issue at trial was what adjustment, if any, should be made differently because the wife had died, rather than if she were still alive.

The trial judge considered that there ought to be a 70/30 split in favour of the husband. This was based on a 60/40 division on contributions, and a further 10% in favour of the husband for s.75(2) or future factors.

The husband did not like this outcome and appealed. The Full Court rejected the appeal. The court had a long discussion about what impact the death of a party has to s.75(2) factors (emphasis added):

In support of his contention that an adjustment of 10 per cent was inadequate, it was submitted on behalf of the husband that the Estate has no needs whereas the husband has the significant and ongoing responsibility to support and accommodate himself and the two children. It was submitted that the needs of a surviving spouse have a “decisive impact” and that an adjustment of 10 per cent was inadequate, especially given that the dollar value of the adjustment is only approximately $99,000. Counsel contended that the pool of property available for distribution in this matter is not large, and that as such there should have been a greater adjustment. In support of this contention counsel referred us to the decision of Tasmanian Trustees Ltd and Gleeson(1990) FLC 92-156 per Full Court (Nygh J with whom Strauss and Baker JJ agreed).

In that case, the husband died while judgment with respect to property settlement was reserved. The Full Court recognised that the most obvious difference caused by the husband’s death was the fact that the deceased no longer had any s 75(2) needs for the future, while the survivor continued to have such needs. While the Full Court recognised (at 78,086) that the deceased had “a prima facie moral entitlement to the share gained by contribution during his or her lifetime and, if this is so desired, to dispose of that share by will to persons who are strangers to the marriage”, the surviving wife’s needs were found to be large enough to justify an adjustment in her favour of the share to which the husband might have been entitled to by way of contribution had he not died, in circumstances where the estate was very small and the wife’s needs were “overwhelming”. The trial judge had found it was no longer appropriate to make an order with respect to the former matrimonial home which the wife would retain by survivorship.

Again, in Re Parrott v Public Trustee of NSW(1994) FLC 92-473 it was recognised (at 80,906) that:
it is clear enough that the death of one party has a profound effect upon the balance of sec 75(2) factors, as the Full Court pointed out in Tasmanian Trustees Limited and Gleeson(1990) FLC 92-156.

However, although it is clear that when a spouse dies there are generally no s 75(2) factors that can be taken into account in favour of the estate, and that that should highlight the needs of the surviving spouse and the fact that they have to be met, it is equally apparent that that should not detract from the need to recognise the entitlement of the deceased spouse (which devolves onto that spouse’s estate) arising from a consideration of the respective contributions of the parties.

This issue was highlighted by Smithers J in Menzies and Evans(1988) FLC 91-969 where his Honour said this (at 77,010):

The only significant difference in the analysis of the case arising out of the death of the deceased, is the obvious one that, when comparing the position of each of the parties, the deceased no longer has sec. 75(2) needs for the future, while the husband continues to have such needs. This does, in my view, alter the situation in a way which should be reflected in the outcome of the case. Even though his needs can be met out of income, the fact that he does have to meet them, and that the deceased does not have such needs, is the significant factor here. This aspect of the case should be of moderate significance only however in view of the amount of the assets, the age of the husband, and the extent of his future needs. Save to the extent necessary to reflect this aspect of the case it would in my view be wholly inappropriate that the deceased should be deprived of the benefits of her contributions over so many years. That is to say that it is still appropriate, following the death of the deceased, that the outcome of the case should depend, largely, upon the extensive contributions of the parties over so many years.

We observe that this was referred to with approval by the Full Court in Tasmanian Trustees Ltd and Gleeson at 78,085-086.

In this case, as referred to above, her Honour found that given his income, expenses and savings the husband was in a “comfortable position” and that on the assumption that his superannuation would continue to grow he “can look forward to financial security in his retirement”. Thus, as counsel for the wife said, it is not readily apparent what the husband’s real needs are, and in any event, to use the words of Smithers J, “[t]his aspect of the case should be of moderate significance only” and “the outcome of the case should depend largely upon the extensive contributions of the parties over so many years”.

Next, in addressing the husband’s submissions that the trial judge failed to adequately take into account the fact that since separation the husband has had the sole responsibility for the care of the children, counsel for the wife referred us to the decisions of Georgeson and Georgeson[1995] FamCA 62; (1995) FLC 92-618, V and G(1982) FLC 91-207, and Zdravkovic and Zdravkovic (1982) FLC 91-220. In those cases the Court held that caution should be exercised when considering the impact of the future maintenance needs of children in determining a property settlement for the benefit of a spouse. We agree that this is a relevant consideration and particularly here given the ages of the children

The husband also contends that the trial judge’s reasons do not fully disclose her Honour’s reasoning as to how the $71,433 received by the wife’s daughter was taken into account.

We observe that the primary submission of the husband in relation to this issue was that it should be added back to the pool of assets. Her Honour addressed this (at paragraphs 34-37) and concluded that that amount should not be added back. On that basis her Honour said that instead she would “take into account the fact of this payment to [R] pursuant to s 75(2)”. Then, her Honour revisited this issue when considering s 75(2)(o) of the Act saying this:

It is noted, [the wife’s] daughter [R] received some $71,000 from her superannuation in 2005. The consequence is that neither [the husband], [C] or [J] can receive any part of that benefit. On the other hand [the wife] elected to direct this money solely to [R], which was her right.

Now, although it is quite apparent from her Honour’s reasons that she took this into account, it is true that her Honour did not for example detail how much of the 10 per cent adjustment that she made for all relevant s 75(2) factors is accounted for by this factor. However, her Honour did not do this for any of the relevant factors that she took into account, and as conceded by counsel for the husband before us, her Honour was not obliged to do so. There is ample authority in this Court to that effect. For example, in Brandt v Brandt(1997) FLC 92-758 the Full Court said this (at 84,343):

This mathematical adjustment suffers from the same defect as that mentioned above. There is a broad discretion to be exercised. The process for properly exercising that discretion has been frequently identified by the Full Court and commented on by the High Court. Whilst the task requires the exercise of a broad discretion capable of being exercised within ‘the generous ambit within which reasonable disagreement is possible’ (per Brennan J in Norbis at p 540) it is not generally an accounting exercise nor is it analogous to an award of damages or compensation which might call for a division into component parts.

As this Court has often recognised (eg see Steinbrenner & Steinbrenner[2008] FamCAFC 193, at paragraph 234), given that the assessment of the relevant factors arising under s 75(2) of the Act inevitably moves from a “qualitative evaluation” of those factors to a “quantitative reflection of such evaluation, there will inevitably be a ‘leap’ from words to figures”. That is the nature of the exercise of discretion

The husband’s challenge in this ground is again to the weight that her Honour gave to the various considerations relevant under s 75(2), and the adjustment made as a result. In this instance, we are satisfied that her Honour took into account all relevant matters, and importantly the husband’s care of the children and his health difficulties. Her Honour also had regard to the husband’s income, his substantial superannuation benefit and the savings he has been able to accumulate. The husband did not seek to challenge the trial judge’s findings on these issues and did not raise any additional relevant matters that her Honour ought to have taken into account in a consideration of s 75(2). As we have said, his challenge was solely to the adjustment made on account of the relevant matters

The trial judge also took into account the superannuation benefit received by the wife’s daughter R. Her Honour had regard to this factor generally in her consideration of s 75(2)(o).

In these circumstances we are not satisfied that her Honour exercised her discretion pursuant to s 75(2) by reference to erroneous facts, nor did she have regard to extraneous or irrelevant facts or circumstances, nor did she fail to have regard to relevant facts or circumstances. No error of principle has been established, and it has not been demonstrated that, despite the absence of demonstrable error, the 10 per cent adjustment was manifestly excessive. Certainly it has not been established to us that in making that adjustment her Honour fell “beyond the ambit of a reasonable exercise of discretion”. Thus there is no merit in this ground.

Thursday, 9 September 2010

In the recent Full Court of the Family Court casse of Manolis and Manolis, and Grefeld and Grefeld, out of time appeals were allowed to proceed due to errors in calculation by the solicitors.

In Manolis the husband was allowed to proceed with an appeal that was one day late for filing because the husband's solicitor had made a mistake counting the days, and it was not a mistake of the husband.

Justice May, sitting as the Full Court, stated:

Balancing the delay of one day (being the mistake of the lawyers not the husband) the fact that there is no prejudice to the respondent other than the prospect of an appeal being heard as against what may prove to be limited prospects of success, the leave should be granted. The mistake being that of the lawyers and filing only one day out of time is of particular significance (see Jess v Scott and Others(1986) 70 ALR 185 a decision of the Federal Court particularly at p.189 to 191 where the solicitor in that matter was also out of time by one day).

Without considering the merits of the appeal any more than is necessary for this application, it can be seen that to deprive the husband of an opportunity to appeal, where the filing was one day out of time may work an injustice against the husband.

In Grefeld, the solicitor for the wife made a similar error:

After the decision of the trial judge was handed down on 22 June 2010 the solicitor for the wife was asked to consider an appeal. Counsel who conducted the trial was overseas at the time and was not available until 5 July 2010. On that day the solicitor contacted counsel and requested comment on the prospects of success of an appeal and asked that a notice of appeal be drafted. Counsel was also briefed to provide a response to an application for costs, which the second respondent made against the husband and the wife.

On 20 July 2010 a draft notice of appeal was forwarded to the wife’s solicitor, by counsel and there was a discussion as to whether the appealed need to await the outcome of the costs judgment.

When the solicitor attempted to file the notice of appeal it became apparent that he had miscalculated the twenty-eight day timeframe. The wife was in fact one day out of time.

Wednesday, 8 September 2010

Parties who had spent over $400,000 in legal costs in a recent Federal Magistrates Court case were forced to go back for more because the Federal Magistrate did not deliver reasons at the end of a trial. That is the conclusion drawn by Justice May of the Family Court, sitting as the Full Court, in the recent Family Court case of Dahler and Thor when her Honour ordered that the matter be retried and that a certificate issue for the mother, father and independent children's lawyer for their legal costs.

The problem came about because there had been a 10 day trial about parenting issues when then Federal Magistrate Wilson announced some preliminary reasons, but would publish written reasons later on. Federal Magistrate Wilson retired from the bench without ever delivering those final reasons. The taxpayer through Legal Aid Queensland spent over $28,000 in legal costs. The mother had provided a mortgage over her home in favour of her lawyers and had incurred over $170,000 in legal costs. The father incurred over $205,000.

The certificates, payable by the Commonwealth Attorney-General, are worth about $4,000 to each of the parties.

The independent children's lawyer submitted:

It is a travesty of circumstances that the parties now face the prospect of a further hearing after having expended huge financial resources and energies in a 10 day trial which does not produce a proper result.

Monday, 6 September 2010

All too frequently, the Family Law Courts see tragic cases involving the use of drugs. Often those taking drugs deny that they are taking them, or minimise their impact. A recent pilot study, published in the Medical Journal of Australia, undertaken by doctors in Perth has highlighted the risks of taking amphetamines and marijuana. The study shows a 40 times higher chance of amphetamine users ending up with brain lesions than those who did not take drugs.

The study covered 30 users, with an average age of 27, who took ice, speed or ecstasy. Of the 30 users:

26 used marijuana

23 used ecstasy

16 used ice

9 used speed

the average age they started using amphetamines was 18

6 or 1 in 5 had a brain lesion

23 of the users were serious users and 5 of those had brain abnormalities.

By contrast, another study showed that similar brain abnormalities for people of a similar age occurred for 5 tested in a thousand, or 40 times less.

Sunday, 5 September 2010

"To Stephen,
Thank you for all your support on this special day. Bringing about awareness about Domestic Violence is so very important. Thank you for your choice to stand up against it.
Blessings,
Narelle".
Narelle Warcon, author of Blonde Roots

I am one of Australia's leading surrogacy and divorce lawyers. I was admitted in 1987, and have been an accredited family law specialist since 1996.
I am a partner of Harrington Family Lawyers, Brisbane.
I am an international representative on the American Bar Association's Artificial Reproductive Technology Committee. I am the first international Fellow of the American Academy of Assisted Reproductive Treatment Attorneys. I am one of 33 Australian practising lawyers who are Fellows of the International Academy of Family Lawyers, one of the most prestigious family law groups in the world. I am a founding member of the Australian Chapter of the Association of Family and Conciliation Courts.
I have written and spoken extensively about family law, domestic violence and surrogacy.
I have handled pretty well every type of family law case there is known in over 30 years, and have advised surrogacy/fertility clients from throughout Australia and at last count 24 countries overseas. I have obtained surrogacy orders in Qld, NSW, Vic and SA- the only lawyer to have done so.